PEOPLE v. KEY (2026)

When he was 17 years old, defendant was charged with two counts of criminal possession of a weapon after police officers discovered a loaded firearm in his fanny pack during a postarrest inventory search.  Based on his age and these charges, defendant's case was presumptively eligible for transfer to Family Court under New York's “Raise the Age” (RTA) legislation (L 2017, ch 59, pt WWW, § 1–a).  Instead, upon an application by the People, Supreme Court retained this case in the Youth Part. Now, we are asked to determine if the People met their burden of establishing “extraordinary circumstances” so as to overcome the RTA's statutory presumption that an adolescent offender's case be transferred to Family Court.  In our view, they did not.

An “extraordinary circumstances” determination by Supreme Court sitting in the Youth Part is discretionary.  And generally, we do not disturb a trial court's exercise of its discretion in the absence of an abuse of that discretion, which represents an error of law.  However, we have the power, in the interests of justice, to reverse or modify a discretionary determination even in the absence of an abuse of discretion.  That power recognizes that there will be instances where a trial court committed no error of law demanding correction, but the facts and circumstances of a particular case call for a different outcome in the eyes of the intermediate appellate court.  It is a power that we admittedly employ sparingly.

Here, given the record before us, we cannot conclude that Supreme Court abused its discretion in adjudicating the People's motion to prevent the removal of defendant's case to Family Court.  Nevertheless, as will be explained below, we hold that in the interest of justice, the People's motion should be denied and the case removed to Family Court.  In so holding, we neither disagree with Supreme Court or our dissenting colleagues as to the applicable legal principles nor suggest that we are curbing or limiting the discretion of a Youth Part court in adjudicating a removal motion.  Rather, we simply conclude that, in light of the text of the RTA, the purpose of that law, the presumption in favor of removal, and the particular facts and circumstances of this case, a different outcome is warranted here than the one selected by Supreme Court.

Accordingly, for the foregoing reasons, we reverse.

I.

On May 15, 2021, during a neighborhood basketball tournament, defendant, then 17 years old, chased a young woman across a basketball court, grabbed her from the back while placing his arm around her neck, and eventually brought her to the ground.¹  As a result, the young woman suffered minor injuries.  At no point, including at the time of his arrest, did defendant take out, display, use, or fire a gun.  Nor did he otherwise threaten to do so.

Following the altercation, defendant attempted to flee from police, but he was apprehended.  While police placed defendant under arrest, the young woman – who was also chasing him as he fled – threw bleach at defendant's face and was also arrested.  Hours later, during the postarrest inventory search at the police precinct, officers recovered the loaded gun from defendant's fanny pack.  Accordingly, although initially arrested for a misdemeanor charge of assault, defendant was also charged with two counts of criminal possession of a weapon in the second degree.

Shortly after, the People moved pursuant to CPL 722.23 to prevent removal of defendant's case to Family Court.  The People first maintained that “defendant's criminal history and character” warranted retaining the case in the Youth Part of Supreme Court.  As relevant to this point, the People noted that defendant had a prior youthful offender adjudication for firing a gun on a public street when he was 14 years old.  The People, however, conceded that this incident, which occurred more than two and a half years prior to the incident at issue in this case, was defendant's only significant contact with the criminal justice system.  Next, the People observed that, in this case, defendant was rearrested while possessing a gun despite receiving employability and life skills training, access to internships in his field of interest, job training, and access to an alumni network.  Third, the People suggested that removal to Family Court would undermine the public's confidence in the criminal justice system to deal with recidivist defendants.  Finally, the People contended that removal would have a “negative effect” on the “safety and welfare of the community” because defendant's possession of a weapon in a crowded area is a violent and dangerous act.

In opposition, defendant countered that none of the aggravating factors raised by the People constituted “exceptional” or “unusual” circumstance that justified retention in the Youth Part. Defendant further maintained that removal to Family Court was appropriate based on various aspects of his personal and familial circumstances.  Defendant noted that he is being raised by a single mother in a high-crime area, and his father, who was previously incarcerated, was largely absent in his life.  Defendant also pointed to his close relationships with his six-year-old sister and baby brother, his childcare responsibilities and household duties, and his academic success.  Defendant also engaged in sports programs that promoted his friendships and social skills.  When his case was resolved, he hoped to find a vocational program to explore career options, such as becoming a sound engineer, performing automotive work, or obtaining a barber's license.  Finally, defendant emphasized the positive evaluations he received following his participation in several Family Court programs.

By decision dated July 23, 2021, Supreme Court granted the People's motion, holding that extraordinary circumstances established a “clear and compelling basis for overcoming the statutory preference that an adolescent offender have his case transferred to family court.”  Although it acknowledged that the intent of the RTA was that “the overwhelming bulk of cases would be removed to Family Court,” the court maintained that defendant's “repeated arrests, each arrest involving the alleged possession of a firearm and after having had the benefit of a youthful offender adjudication, demonstrate a disregard for the criminal justice system.”  Therefore, Supreme Court concluded, “the community is better served by retaining [defendant's] case in [the Youth Part].”

After Supreme Court denied his later-filed suppression motion, defendant pleaded guilty to attempted criminal possession of a weapon in the second degree in exchange for a promised prison term of two years.  The court subsequently imposed the promised sentence.²

This appeal followed.

II.

A.

Under the RTA, prosecutions of adolescent offenders – defined as 16 or 17 year olds charged with a felony – are presumptively removable from the Youth Part of Supreme Court to Family Court (see CPL 722.10[1];  CPL 722.23[1], [2];  People v. Guerrero, —NY3d—, 2026 N.Y. Slip Op 00826, *1 [2026];  People v. Yahmir T.D., 241 AD3d 576, 577 [2d Dept 2025] ).  The People can rebut that presumption if a defendant is charged with a class A nondrug felony or a violent felony, and the People prove, “by a preponderance of the evidence,” that defendant (1) “caused significant physical injury” during the commission of the offense, (2) “displayed a firearm, shotgun, rifle or deadly weapon” in “furtherance of” the offense, or (3) committed a sex offense (see CPL 722.23[2][c];  People v. Lloyd F., 245 AD3d 69, 71 [2d Dept 2025] ).  “Otherwise, the case is removed to Family Court unless, upon a motion by the People, the [Y]outh [P]art determines that ‘extraordinary circumstances exist that should prevent the transfer of the action to’ Family Court” (Guerrero, 2026 N.Y. Slip Op 00826, *2–3, citing CPL 722.23[1][d] ).

B.

The RTA does not define the term “extraordinary circumstances” (see generally CPL 722.23).  Consequently, in the absence of a statutory definition, we must apply the rules of statutory construction by, among other things, consulting the legislative history of the RTA so as to give effect to the plain meaning of its terms (see People v. Williams, 37 NY3d 314, 314–318 [2021];  see also Guerrero, 2026 N.Y. Slip Op 00826, *3).

As that legislative history reveals, legislators had anticipated that a court's extraordinary circumstances analysis would “look at all the circumstances of the case, as well as the circumstances ․ of the young person” (N.Y. Assembly Debate on 2017 N.Y. Assembly Bill A3009C, April 8, 2017 [Debate] at 39, 65).  To that end, several illustrative examples of “extraordinary circumstances” were elucidated during the Debate (see id. at 38–40).  Such examples of “[a]ggravating factors that may involve extraordinary circumstances” included those situations where an adolescent offender committed “a series of serious crimes ․ over the course of many days,” acted in an “especially cruel and heinous manner,” or served as “a ringleader who threatened and coerced reluctant youths to participate in the crimes” (id. at 40).  These aggravating factors would then be considered in tandem with mitigating circumstances, such as “economic difficulties, substandard housing, poverty, learning difficulties, of course, and educational challenges, lack of insight and susceptibility to peer pressure due to immaturity, absence of positive role models, behavioral role models, abuse of alcohol or controlled substances by the [adolescent offender], by family or by peers” (id.).  Legislators also expressed hope that, when engaging in this “extraordinary circumstances” analysis, courts would “look at [each] case” and draw inferences “in [a] light that's most favorable to the juvenile who they stand in jurisdiction of” (see id. at 102).

Certainly, legislators understood during the Debate that “every case is going to be different,” and that each case's balance of aggravating and mitigating factors would be “looked at by the judge individually” and, in turn, “ ‘determined and shaped by a judge's ruling’ ” (Guerrero, 2026 N.Y. Slip Op 00826, *3 [quoting Debate at 83–84];  see also Debate at 85, 102).  Still, while leaving the “extraordinary circumstances” inquiry up to the trial court's broad discretion, legislators also articulated a clear intent that this analysis would result in the “overwhelming bulk of the cases” being “promptly transferred from the adult court to the family court” (Debate at 37;  see also id. at 39 [emphasizing that “[t]ransfer to the family court should be denied only when highly unusual and heinous facts are proven and there is a strong proof that the young person is not amenable or would not benefit in any way from the heightened services in the family court”] ).  In fact, as one of the bill's sponsors remarked, “the exceptional circumstances requirement will be a high standard for the [People] to meet” (id. at 39).³

C.

Following enactment of the RTA, courts in New York grappled with the statute's legislative history to determine the appropriate standard for evaluating the existence of “extraordinary circumstances” in a case.  Most courts – including this one – generally acknowledged that the relevant inquiry required consideration of the totality of circumstances (see e.g. People v. Messina, 241 AD3d 1095, 1096 [1st Dept 2025], lv denied 45 NY3d 938 [2026];  People v. Guerrero, 235 AD3d 1275, 1278 [4th Dept 2025], affd —NY3d—, 2026 N.Y. Slip Op 00826 [2026] ).  Others placed special emphasis on the nature of the aggravating factors and adolescent offender's propensity to benefit from services in the family court (see e.g. Lloyd F., 245 AD3d at 77;  People v. Aaron VV., 246 AD3d 131, 135–137 [3d Dept 2025] ).

In its recent decision in People v. Guerrero, the Court of Appeals declined to endorse this latter approach (2026 N.Y. Slip Op 00826, *1, 3;  see also id. at *5–8 [Halligan, J., dissenting] [criticizing the majority's approach when legislative history suggested that “a court's analysis of all the circumstances should consider whether the facts are ‘highly unusual and heinous’ and whether the defendant is amenable to services”];  Guerrero, 235 AD3d at 1281–1283 [Montour, J., dissenting] [similar] ).⁴  The Court instead held that the relevant inquiry for reviewing a determination made under CPL 722.23(1)(d) is whether, under the totality of circumstances and after weighing both aggravating and mitigating factors, the trial court abused its discretion when concluding that extraordinary circumstances existed to prevent removal of a case to Family Court (see 2026 N.Y. Slip Op 00826, *2–3).  The Court reached this conclusion because the RTA's statutory silence on a definition for “extraordinary circumstances” evinced a clear “legislative intent to leave the extraordinary circumstances determination within the broad discretion of the court” (id. at *3).  After analyzing the facts, the Court then found that the “circumstances of this case could fairly be described as extraordinary” because defendant's “criminal behavior escalated to the point that only a month after receiving a Family Court appearance ticket ․ he participated in a preplanned home invasion in which he displayed a knife” (id. at *3–4).  Therefore, given the legislative intent it identified, the Court concluded that despite the existence of mitigating factors, the trial court did not abuse its discretion as a matter of law in determining that extraordinary circumstances existed that should prevent removal to Family Court (id.).

III.

A.

On appeal, defendant argues that the People failed to meet the “very high” standard for establishing “extraordinary circumstances” to prevent removal to Family Court.  Defendant contends that a careful balancing of the aggravating and mitigating factors in this case makes clear that this case is not one of the “one in 1,000 cases” that legislators contemplated would be retained in the Youth Part. Specifically, defendant asserts, the record reflects ample mitigating circumstances to support removing his case to Family Court, while none of the aggravating factors indicate that he acted in an especially cruel and/or heinous manner.  Defendant concludes that, based on this record, Supreme Court's “extraordinary circumstances” analysis was not a provident exercise of its discretion.

In response, the People counter that Supreme Court did not abuse its discretion by concluding that extraordinary circumstances existed to prevent removal to Family Court.  The People maintain that Supreme Court properly concluded that any mitigating factors were outweighed by serious aggravating factors that could not be ignored.  In the People's view, defendant's contentions to the contrary minimize the seriousness of his present offense and fail to account for his repeated arrests for gun possession.

Under the framework set forth by Guerrero, we cannot say that, as a matter of law, Supreme Court abused its discretion by granting the People's motion to prevent removal to Family Court.  To support its finding of extraordinary circumstances, Supreme Court considered the parties' respective submissions and weighed competing aggravating and mitigating factors to conclude that there was a “clear and compelling basis” to retain defendant's case in Youth Part. Given this analysis, we must conclude that Supreme Court acted within its broad discretion by applying the correct analytical framework set forth in Guerrero for evaluating the existence of “extraordinary circumstances.”

B.

Our review, however, does not end there.  Indeed, unlike the Court of Appeals, the Appellate Division may substitute its own discretion even where a trial court has not abused its discretion (see People v. Harrison, 27 NY3d 281, 289–290 [2016]; People v Guay, 18 NY3d 16, 22 [2011];  People v. Rosenthal, 305 A.D.2d 327, 329 [1st Dept 2003] ).⁵

This interest-of-justice review power recognizes that, even in the absence of an abuse of discretion, the facts and circumstances of a particular case may warrant a determination other than the one reached by the trial court (see People v. Cha–Narion D., 232 AD3d 1131, 1134 [3d Dept 2024] [although the county court did not abuse its discretion in denying youthful offender status to defendant, Appellate Division substituted its judgment and reversed after considering his family support, limited criminal history, and postoffense educational and work efforts];  see also CPL 470.15[3][c];  Peter Prieser, Prac Commentaries, McKinney's Cons Laws of NY, CPL 470.15 [main vol.] [the Appellate Division's determination to reverse or modify a criminal judgment “may simply reflect an uneasiness with the decision below, manifested by a discretionary decision to overturn or modify the result in the interest of justice”] ).  Although we generally do not exercise our prerogative to substitute our discretion for that of the trial court, here we conclude that, in light of the text of the RTA, the purpose of the act, the presumption in favor of removal, and the particular facts and circumstances of this case, this appeal presents an appropriate circumstance for us to do so.

As noted above, in its decision, Supreme Court placed great emphasis on the aggravating factors identified by the People in support of their motion.  Those factors included that (1) defendant possessed a loaded firearm in a fanny pack when tackling a young woman at a public park, (2) he had previously been adjudicated a youthful offender and sentenced to a conditional discharge in connection with firing a loaded weapon at a group of individuals approximately 21/212 years earlier, when he was 14 years old, and (3) his rearrest at age 17 in this case came only seven months after the final disposition of the aforementioned youthful offender adjudication.  Pointing to these aggravating factors, Supreme Court concluded that defendant had “demonstrate[d] a disregard for the criminal justice system,” which, in Supreme Court's view, warranted retaining his case in the Youth Part.

Initially, we think it is arguable whether these all-too-frequent circumstances rise to the level of “extraordinary” on their own.  Charges of criminal possession of a weapon are unfortunately common-place in the Youth Part (see e.g. People v. J.A.D., 70 Misc.3d 1222[A], 2021 N.Y. Slip Op 50189[U], *5 [Nassau County Ct 2021] [observing that “[a]lthough the Criminal Possession of a Weapon charge against the AO is a serious charge, the Family Court is indisputably capable of presiding over cases involving charges that are equally or more serious”];  People v. J.C., 65 Misc.3d 1228[A], 2019 N.Y. Slip Op 51904[U], *3 [Fam Ct, Erie County 2019] [noting that although criminal possession of a weapon charges are “serious,” they “are the type of case that will commonly be before Youth Part”] ).  It is also sadly the case that youthful offenders in this State often reoffend notwithstanding the services that may be available to them (see NYC Mayor's Office of Criminal Justice, NYC Youth Crime in Context:  Arrest & Recidivism [2025], https://criminaljustice.cityofnewyork.us/reports/nyc-youth-crime-in-context-arrest-recidivism [last accessed July 13, 2026], cited by Guerrero, 2026 N.Y. Slip Op 00826, *6 [Halligan, J., dissenting] [observing that, in 2024, youth felony recidivism rate in New York City was 32.3%];  Richard Mendel, Why Youth Incarceration Fails:  An Updated Review of the Evidence [March 1, 2023], https://www.sentencingproject.org/reports/why-youth-incarceration-fails-an-updated-review-of-the-evidence [last accessed July 13, 2026], cited by Guerrero, 2026 N.Y. Slip Op 00826, *6 [Halligan, J., dissenting] [noting that “state-level data on recidivism consistently shows that youth who are released from correctional confinement experience high rates of rearrest, new adjudications (in juvenile court) or convictions (in adult court), and reincarceration”];  see also Executive Order [A. Cuomo] No. 131 [9 NYCRR 8.131] [observing that an “analysis by the U.S. Centers for Disease Control and Prevention showed that the felony recidivism rate in one state was 34 percent higher for youth whose cases were handled in adult court compared to youth whose cases were handled outside of adult court”] ).⁶  Nevertheless, as part of assessing the totality of circumstances in this case, we must consider and give appropriate weight to these facts as part of a fulsome “extraordinary circumstances” analysis.

Still, even considering the circumstances surrounding defendant's offense and criminal history, the record contains considerable countervailing mitigating factors.  To start, defendant experienced significant financial hardships and a difficult upbringing.  He was primarily raised by a single mother who was only 18 years old and in high school at the time defendant was born, and he spent his childhood in a public housing project that his mother described as a full of “killings” and “gang activity.”  Throughout his childhood, defendant's family remained economically strained, with his mother working three jobs in the hopes of moving defendant away from “toxic” environment in which they were living.  Compounding these difficult circumstances, defendant's father was incarcerated at the time of defendant's birth, and upon his release, made no effort to be in defendant's life, depriving him of a meaningful role model.

Despite these challenges, defendant shouldered caretaker responsibilities for his family, including assisting his mother during a difficult pregnancy and being a source of mentorship and support for his younger siblings.  He participated avidly in sports teams and lessons.  His maturity was importantly manifested by his demonstrated amenability to Family Court's services.  For example, defendant highlighted his improved school performance during the COVID–19 pandemic, his interest in pursuing vocational studies, and his successful graduation from the Exalt Youth program with perfect attendance and outstanding participation.⁷

In our view, these are precisely the types of facts that the legislators contemplated would support removal to Family Court (see Debate at 39–40, 65).  Hence, when carefully balanced with the aggravating factors in this case, these mitigating circumstances decidedly tipped the scale in favor of denying the People's motion (see People v. C.J., 73 Misc.3d 1233[A], 2021 N.Y. Slip Op 51227[U], *2–3 [Nassau County Ct 2021] [finding no “extraordinary circumstances” where mitigating circumstances outweighed fact that adolescent offender possessed a loaded weapon in a house he shared with his mother and had a prior arrest for a gun possession charge];  People v. J.J., 74 Misc.3d 1223[A], 2022 N.Y. Slip Op 50211[U], *4 [Ulster County Ct 2022] [finding no extraordinary circumstances despite “quite serious” allegations that the adolescent offender deliberately set fire in a children's home after considering offender's “troubling upbringing”] ).

This conclusion is only buttressed by the actual circumstances of defendant's offense.  For instance, although criminal possession of a weapon is certainly a serious offense, here defendant never fired, displayed, or threatened to use his weapon, which was only discovered through a postarrest inventory search hours later.  Furthermore, the underlying altercation for which defendant was originally arrested amounted only to a misdemeanor assault charge that would have originally started in Family Court, not Youth Part, but for defendant's weapons possession charge (see Debate at 17).⁸  These facts provide important context about defendant's offense that, especially when coupled with the other compelling mitigating circumstances reflected in the record, undercut any notion that the People sufficiently overcame the presumption against retaining this case in the Youth Part (see Guerrero, 2026 N.Y. Slip Op 00826, *4;  cf.  People v. Donovan QQ., 247 AD3d 1352, 1353 [3d Dept 2026] [affirming motion to prevent removal where People demonstrated that defendant caused life-threatening injuries because of his offense]; People v. Z.S., 88 Misc.3d 1220[A], 2026 N.Y. Slip Op 50151[U], *2 [Albany County Ct 2026] [granting motion to prevent removal to family court where defendant's “criminal actions [were] not an isolated incident” and he not only possessed but actually discharged a firearm in a residential area] ).

At bottom, even after considering the circumstances of defendant's present offense and his criminal history, it is our view that a conclusion that “extraordinary circumstances” are present in this case belies the weight of the substantial mitigating circumstances.  Thus, under the specific facts before us, we hold that the totality of the circumstances overwhelmingly militates in favor of transferring this case to Family Court, consistent with the strong presumption in favor of transfer pursuant to CPL 722.23.⁹

C.

To reach this conclusion, we do not, as the dissent asserts, “ignore” or “minimize” that defendant possessed a loaded firearm in a public park, engaged in an altercation with a young woman, or received a separate youthful offender adjudication seven months prior to his arrest for the present offense.  These are, as explained, clearly aggravating factors that a court must assess as part of the extraordinary circumstances inquiry (see Debate at 21, 40).  Our decision plainly acknowledges and weighs these facts.  Importantly, it should in no way be read to minimize their relevance or significance to the analysis.

However, as the dissent necessarily concedes, it is equally true that the “extraordinary circumstances” inquiry does not end after considering the aggravating factors;  it is the totality of circumstances – which includes mitigating circumstances – that must inform a court's decision to prevent removal to Family Court (see Debate at 39–40, 102;  see also Guerrero, 2026 N.Y. Slip Op 00826, *3).  On the present record, the totality of circumstances did not rise to the “extraordinary” level necessary to overcome the presumption of removal under the RTA.

Whatever weight can be ascribed to Supreme Court's determination that defendant had a “disregard for the criminal justice system” or that “the community is better served by retaining his case in” the Youth Part, defendant's situation fits squarely within the paradigm of cases that the legislators contemplated would be – after consideration of all aggravating and mitigating circumstances – “promptly transferred from the adult court to the family court” (Debate at 37;  see also id. at 102 [noting that “one in 1,000 cases would be kept by the criminal [court] and the others would fall down to the family court”] ).  To be sure, as noted by both the Guerrero Court and the dissent, “[m]ost cases ․ [will] fall somewhere in the middle, and thus are properly subject to judicial discretion” (Guerrero, 2026 N.Y. Slip Op 00826, *4).  But we cannot condone an outcome that is at odds with the legislative intent and purpose in adopting an “extraordinary circumstances” standard under the RTA.

Similarly unpersuasive is the dissent's contention that the RTA's legislative history suggests that there would be “greater scrutiny” if an individual “had a gun or a knife or a weapon or used it” (Debate at 22).  As a preliminary matter, at no point during the debate did any legislator indicate that the “high standard” for establishing “extraordinary circumstances” was somehow lowered when an individual is charged with weapons possession (see id. at 38–39).  In any event, had the Legislature contemplated that a weapons possession charge, on its own, could overcome the RTA's statutory presumption in favor of removal, it could have included such a charge as one of the enumerated circumstances set forth in the statute that expressly prevents removal (see CPL 722.23[2][c][i]-[iii] ).  It did not.  Hence, under the RTA, this defendant should benefit from the statutory presumption of removal to Family Court.

Neither of the cases upon which the dissent relies compels a different conclusion.  In People v. Messina, the evidence “established that defendant was not merely present during this gang assault on the victim, but that he was an active participant at the center of the assault which led to the victim's injuries, including a collapsed lung” (241 AD3d at 1095–1096).  And in Guerrero, defendant had participated in a premeditated, armed home invasion in which he displayed a weapon, seized the victim, and threatened to stab him (2026 N.Y. Slip Op 00826, *1, 4 [observing also that defendant's “accomplices' conduct in displaying firearms would have mandated retention of the case by the youth part if defendant had done so himself”] ).  Given the serious and escalating conduct at issue, each case presented a sufficient basis for the lower court to determine in its broad discretion that, even if an “alternative conclusion would not have been unreasonable” (see id. at *4), extraordinary circumstances existed to prevent removal to Family Court (Messina, 241 AD3d at 1096;  Guerrero, 2026 N.Y. Slip Op 00826, *3–4).  The same cannot be said here.  The present offense, while serious, neither rises to the same level of gravity compared to those charged in Messina and Guerrero nor suggests a pattern of escalating misconduct.  At any rate, the mitigating factors in this case clearly outweigh the aggravating factors identified by the People.

Ultimately, we do not disagree with the People, Supreme Court, or our dissenting colleagues that the possession of firearms by adolescents is a significant and serious public-safety concern.  Nevertheless, we believe that the Legislature, which is trusted to make difficult policy choices, considered these public-safety issues and balanced them with its justifiable concerns about the manner in which adolescents are treated by our criminal and family court justice systems (see generally Debate at 21, 74 [explaining that a goal of the RTA is to allow adolescent offenders “to get better outcomes for their lives not only with the services that were employed [by Family Court], but by not receiving a criminal record at the end of all this so that they could change their life around” because “kids' lives are worth saving”] ).

IV.

In sum, we acknowledge that applications under CPL 722.23 “are properly subject to judicial discretion” (see Guerrero, 2026 N.Y. Slip Op 00826, *4).  However, the RTA did not abrogate this Court's power to review discretionary rulings and, if appropriate under the particular facts and circumstances, substitute the Court's discretion for that of the trial court.  As discussed above, we believe that substituting our discretion to deny the People's CPL 722.23 application and remove this action to Family Court is warranted based on the presence of “special circumstances deserving of recognition” in this case (see People v. Chambers, 123 A.D.2d 270, 270 [1st Dept 1986] ).  These circumstances, in turn, preponderate significantly in favor of the conclusion that no “extraordinary circumstances” exist to rebut the presumption that the action should be removed.  We believe too that the outcome we direct is more in line with the evident purpose of the RTA:  to afford the overwhelming majority of adolescent defendants the benefit of Family Court services and supervision instead of criminal prosecution.

We close by stressing that which we highlighted at the outset:  our decision, resting as it does on our appellate review of a fact-specific discretionary determination, does not, as the dissent suggests, “severely limit” the discretion of a Youth Part court in adjudicating a removal motion.  Like our dissenting colleagues, we recognize that the jurists in those parts are rightly trusted under the RTA with broad discretion in determining CPL 722.23 applications, and nothing in this decision can be reasonably read to disturb that sound conclusion.  We simply have a healthy, albeit robust, disagreement with our dissenting colleagues about whether the particular facts and circumstances of this appeal warrant substituting our discretion for that of the trial courts given the intent and goals of the RTA.

Accordingly, the judgment of Supreme Court, New York County (Stephen Antignani, J., at CPL 722.23 motion, plea, and sentencing;  Miriam Best, J., at suppression hearing), rendered June 23, 2022, convicting defendant of attempted criminal possession of a weapon in the second degree, and sentencing him to a term of two years, should be reversed, as a matter of discretion in the interest of justice, the People's motion to prevent removal to Family Court denied, and the matter remitted for the entry of an order removing the action to Family Court, New York County.¹⁰

I would affirm.

Defendant was charged, as an adolescent, with two counts of criminal possession of a weapon in the second degree and one count of assault in the third degree.  Specifically, it was alleged that on May 15, 2021, at a neighborhood basketball tournament, he chased a young girl, placed her in a chokehold, and tackled her to the ground, causing her to sustain physical injury.  The incident was observed by numerous police officers who were on patrol at the playground.  As the officers approached defendant, he attempted to flee, causing the officers to give chase.  Defendant was apprehended and placed under arrest.  The pursuit and arrest were captured on the police officers' body cameras.  In an inventory search of a fanny pack that defendant was carrying on his shoulder, the police recovered a firearm loaded with seven cartridges in the magazine and one cartridge in the chamber.

Seven months earlier, in October 2020, defendant had been convicted of attempted assault in the first degree and criminal possession of a weapon in the second degree.  In that incident, defendant, who was with a group of boys, fired a gun at another group of boys.  Defendant was adjudicated a youthful offender and was sentenced to a conditional discharge.

Following defendant's May 2021 arrest, the People filed a motion pursuant to CPL 722.23 (a part of the Raise the Age Law or RTA) to prevent removal of defendant's case to Family Court.  The People argued that extraordinary circumstances existed warranting retention of the case in the Supreme Court Youth Part. The People provided the court with the facts of the case, the grand jury minutes, a video of the prior shooting, and a letter from Exalt Youth, an organization from which defendant had been receiving services that included skills training.  The People noted that despite the rehabilitative services offered defendant, he was rearrested for possession of another loaded firearm, months after his youthful offender adjudication for gun possession.

In opposition, defendant argued that no one was injured during the first incident, that he did not use the gun he was in possession of in this case, and that the victim sustained only minor injuries.  Defendant emphasized that increased rehabilitative services would allow him to become a productive member of the community.

On July 23, 2021, Supreme Court issued a written decision granting the People's motion to prevent removal of the case to Family Court.  On June 7, 2022, defendant entered a plea of guilty to attempted criminal possession of a weapon in the second degree. He was sentenced to a term of two years' incarceration.¹¹

The RTA, enacted in 2017, provides that a judge in the Youth Part of the superior court (established by CPL 722.10) must determine the proper forum for the prosecution of “a defendant charged with a crime committed when he or she was sixteen[ ] or ․ seventeen years of age” (CPL 722.23[1] ).  The court “shall order the removal of the action to the family court ․ unless within thirty calendar days of such arraignment, the district attorney makes a motion to prevent removal of the action pursuant to this subdivision” (CPL 722.23[1][a] ).  Subsection (1)(d) of the statute provides that “[t]he court shall deny the motion to prevent removal of the action in youth part unless the court makes a determination upon such motion by the district attorney that extraordinary circumstances exist that should prevent the transfer of the action to family court.”  The RTA specifically created the Youth Part, which was to be presided over by Family Court judges with specialized training to decide the proper forum for the criminal prosecution of adolescents (see CPL 722.10[1];  Matter of Clark v. Boyle, 210 AD3d 463, 463 [1st Dept 2022], lv denied 39 NY3d 974 [2023] ).

The term “extraordinary circumstances” is not defined by the statute. The limited legislative history addressing RTA provides some guidance and examples of what a court can take into consideration in determining whether there are “extraordinary circumstances” warranting retention in the Youth Part. The bill's sponsor stated that to determine whether extraordinary circumstances exist, courts should “look at all the circumstances of the case, as well as ․ all of the circumstances of the young person” (N.Y. Assembly Debate on 2017 N.Y. Assembly Bill A3009C, April 8, 2017 [Debate], at 39, 65).  This would include reviewing both mitigating and aggravating factors, “proof of a series of serious crimes,” evidence that a defendant “act[ed] in an especially cruel and heinous manner,” and whether the defendant was a “ringleader who threatened or coerced” others to participate.  Specifically, the bill's sponsor stated that a case should be retained “when highly unusual and heinous facts are proven and there is a strong proof that the young person is not amenable or would not benefit in any way from the heightened services in the family court” (Debate at 39–40).  According to the sponsor of the bill, a case “could go to” Family Court “if nobody had a gun or a knife or a weapon or used it” (Debate at 22).

In terms of mitigating circumstances that courts should consider, it was stated that they included a “wide range of individual factors, such as economic difficulties ․ educational challenges, lack of insight and susceptibility to peer pressure due to immaturity, absence of positive role models,” and abuse of drugs or alcohol, either by defendant or a family member or peer (Debate at 40).  It was stressed that “every case is going to be looked at by the judge individually, to determine what kind of factors ․ there are in the case to determine” whether extraordinary circumstances exist (Debate at 83–85, 102).  Thus, it was left to the specially trained Youth Part judge to look at each defendant individually, consider all of the factors, and make a determination as to whether extraordinary circumstances exist.

In my opinion, Supreme Court providently granted the People's motion to prevent removal to Family Court (see People v. Messina, 241 AD3d 1095, 1095–1096 [1st Dept 2025], lv denied 45 NY3d 938 [2026] ).  The People demonstrated extraordinary circumstances justifying retention of the case in Supreme Court rather than a transfer to the Family Court (see People v. Guerrero, — NY3d —, 2026 N.Y. Slip Op 00826 [2026], affg 235 AD3d 1276 [4th Dept 2025] ) [motion court did not abuse its discretion in determining that extraordinary circumstances existed to retain case where “despite the various services and programs” provided to the defendant while he had been involved in the criminal justice system, he “made no appreciable positive response and continues to engage in escalating criminal behavior” (id. at 1278) ];  People v A.T., 63 Misc.3d 891, 895–896 [Fam Ct, Erie County 2019] [extraordinary circumstances based on failure to comply with release conditions, lead a law-abiding life, report to probation, and appear for court dates, which all demonstrated the defendant was not amenable to services].

In its decision in the present case, Supreme Court discussed the facts of the case, noting that although defendant had previously engaged with rehabilitative services and had the benefit of a youthful offender adjudication for firing a gun into a group of boys, he was rearrested only seven months later for committing the loaded gun possession offense, a violent felony, in this case, thus violating the conditional discharge.  After considering the aggravating and mitigating factors, the court concluded that given the totality of the circumstances, defendant demonstrated that he “had a disregard for the criminal justice system” and that “the community is better served by retaining his case in Supreme Court.”

In People v. Messina, this Court held that the motion court providently exercised its discretion in determining that extraordinary circumstances existed that justified retaining the defendant's attempted first-degree robbery indictment in Supreme Court (241 AD3d at 1096).  We found that the defendant's arrest while receiving services and his flagrant violation of the terms of his supervision warranted retention (id.)  We noted that the motion court had properly considered the circumstances of the underlying offense as well as the mitigating and aggravating factors presented (id.;  see also Guerrero, 235 AD3d at 1278).

In People v. Guerrero, the Court of Appeals stated, “[t] he only question before us is whether the youth part, considering the totality of the facts and circumstances before it, abused its discretion as a matter of law in determining that extraordinary circumstances existed that should prevent removal to Family Court” (2026 N.Y. Slip Op 00826, *3).  The Court held that the trial court, after weighing the considerable aggravating and mitigating factors, did not abuse its discretion in determining that extraordinary circumstances exist that should prevent removal to Family Court (id. at *4).

In my opinion, Supreme Court properly exercised its discretion in finding that removal to Family Court was not warranted.  In making its determination that extraordinary circumstances existed, Supreme Court considered the totality of the facts and circumstances before it and properly balanced the aggravating and mitigating factors (see Messina, 241 AD3d at 1096).

It is clear that appellate courts should review and reverse findings of extraordinary circumstances only if there is an abuse of discretion by the trial court in granting a prosecutor's motion to prevent removal to Family Court (see Guerrero, 2026 N.Y. Slip Op 00826,*4.)  “[A]n appellate court will neither lightly overrule the trial court in its exercise of judicial discretion nor substitute its own judgment, unless it appears that there has been a clear abuse of the discretion vested in the court of original jurisdiction” (People v. Diaz, 10 A.D.2d 80, 90 [1st Dept 1960], affd 8 N.Y.2d 1061 [1960];  see also People v. Telfair, 41 NY3d 107, 114 [2023], citing People v. Morris, 21 NY3d 588, 597 [2013] [“trial court's decision to admit the evidence may not be disturbed simply because a contrary determination could have been made or would have been reasonable.  Rather, it must constitute an abuse of discretion as a matter of law”] ).

Here, Supreme Court cannot be said to have abused its discretion as a matter of law.  Indeed, the majority agrees that there was no abuse of discretion by Supreme Court.  In my opinion, the sole determination on appeal is whether there was an abuse of discretion, and our review ends there (see People v. Guerrero, 2026 N.Y. Slip Op 00826 at *3).  I strongly disagree with the majority that despite the fact that there was no abuse of discretion by Supreme Court, this Court should nevertheless review Supreme Court's determination and substitute our discretion for that of a court specifically created and mandated to make such decisions.  Any suggestion by the majority that the Court of Appeals would have held otherwise in Guerrero if it also had the ability to substitute its own discretion is without merit and irrelevant to the determination to be made by this Court.

While the majority is correct that on review, the Appellate Division does have the authority to substitute its discretion for that of the trial court (CPL 470.15[3] ), that ability is not unfettered.  In People v. Rickert (58 N.Y.2d 122, 133 [1983] ), the Court of Appeals stated that the appeals court “in an appropriate case possesses the power to review the facts and substitute its discretion ․ even in the absence of abuse.”  However, “[i]n order to exercise [that] interest of justice jurisdiction, there must exist ‘special circumstances deserving of recognition’ ” (People v. Marshall, 106 AD3d 1, 11 [1st Dept 2013], lv denied 21 NY3d 1006 [2013], quoting People v. Chambers, 123 A.D.2d 270, 270 [1st Dept 1986] ).  “Ordinarily, this Court will not exercise its interest of justice jurisdiction absent ‘extraordinary circumstances’ ” (Marshall, 106 AD3d at 11 [citations omitted] ).

While the RTA does not specifically abrogate this Court's ability to substitute its discretion for that of the Youth Part judge, it clearly intended that decisions regarding the prosecution of adolescents be made by specially trained judges assigned to RTA-created Youth Parts.  As has been discussed above, it was clearly intended that the Youth Part judge would look at each individual defendant and consider all of the relevant factors in determining whether the case would be prosecuted in Supreme Court or Family Court.  It was recognized that the Youth Part judge would be in the best position to assess the adolescent by virtue of the judge's specialized training and a review of information provided, as well as interactions with the adolescent.  In my opinion, substituting this Court's determination where there is admittedly no abuse of discretion severely limits the discretion of a Youth Part court.  Moreover, it is in direct contravention to the intent and goals of the RTA.

Further, contrary to the arguments put forth by the majority, the legislative intent behind the RTA does not suggest that all cases involving a defendant charged with a crime at age 16 or 17 should be prosecuted in Family Court.  Indeed, the limited legislative history suggests that it was contemplated that there would be greater scrutiny in cases where the individual “had a gun or a knife or a weapon or used it.”  (Debate at 22).  Further, the Guerrero Court concluded that the RTA's silence on a definition for “extraordinary circumstances” evinced a clear “legislative intent to leave the extraordinary circumstances determination within the broad discretion of the court” (id. at *3).  Thus, recognizing that “[m]ost cases ․ [will] fall somewhere in the middle, and thus are properly subject to judicial discretion” (id. at *4).  Thus, it is not a irrebuttable presumption as suggested by the majority.

Finally, the majority has failed to identify the specific, special, or extraordinary circumstances which would allow this Court to substitute its discretion for that of Supreme Court.  The majority points to the “considerable mitigating factors” present:  “defendant experienced significant financial hardships”;  had “a difficult upbringing”;  “was primarily raised by a single mother who was only 18 years old and in high school at the time defendant was born”;  defendant spent his childhood in a public housing project that his mother described as a full of “killings” and “gang activity”;  “[t]hroughout his childhood, defendant's family remained economically strained, with his mother working three jobs in the hopes of moving defendant away from ‘toxic’ environment in which they were living”;  “defendant's father was incarcerated at the time of defendant's birth and, upon release, made no effort to be in defendant's life, depriving him of a meaningful role model”;  “defendant shouldered caretaker responsibilities for his family, including assisting his mother during a difficult pregnancy and being a source of mentorship and support for his younger siblings”;  “ defendant participated avidly in sports teams and lessons”;  defendant successfully graduated “from the Exalt Youth program with perfect attendance and outstanding participation.”  However, the majority either ignores or minimizes the facts and circumstances of the case and defendant's criminal history.  For example, the majority argues that defendant never fired, displayed or threatened the use of the weapon, thus, ignoring the fact that in the middle of a Saturday afternoon, defendant brought a loaded firearm to a basketball tournament at a crowded playground within a New York City housing complex.  The majority also characterizes defendant's actions of chasing a young girl across the playground, placing her in a chokehold, and throwing her to the ground, causing her to sustain physical injury, as a “brief altercation.”  The majority then states that defendant's actions were “only a misdemeanor” that would have originated in Family Court “but for defendant's weapon's possession charge.”  Again, this characterization minimizes the assault on the young girl, and ignores the fact that defendant was in possession of a loaded firearm for the second time, suggesting there would not have been an issue if the loaded firearm had not been recovered pursuant to the inventory search at the police precinct.

Notably, the majority makes no mention of the fact that only seven months prior, defendant was adjudicated a youthful offender and sentenced to a conditional discharge for firing a gun, on a public street, at a group of boys.  The majority also ignores the fact that despite receiving rehabilitative services (at the aforementioned Exalt Youth program), following that adjudication he violated the conditional discharge and was arrested on the instant gun possession charge.

Unlike Supreme Court's decision, which was an assessment of the “totality of the circumstances” and a balancing of the aggravating and mitigating factors to determine whether extraordinary circumstances existed justifying retention, the majority appears to focus only on the asserted mitigating factors.

In my opinion, Supreme Court's well-reasoned conclusion that defendant was better suited with the more structured supervision and oversight provided in the Youth Part should not be disturbed.

Judgment, Supreme Court, New York County (Stephen Antignani, J., at CPL 722.23 motion, plea, and sentencing;  Miriam Best, J., at suppression hearing), rendered June 23, 2022, reversed, as a matter of discretion in the interest of justice, the People's motion to prevent removal to Family Court denied, and the matter remitted for the entry of an order removing the action to Family Court, New York County.

FOOTNOTES

1.   Body-camera footage in the record indicates that the entire incident unfolded over the course of just approximately 12 seconds.

2.   In a footnote, the dissent alludes to defendant's current circumstances, a matter that is outside of the record.  To be clear, the fact that defendant may have been convicted on a separate, unrelated matter was neither before the motion court nor us, and it is not properly referenced by the dissent here.

3.   This legislative intent makes sense when considering the commonly understood meaning of the term “extraordinary,” which is defined as “beyond what is usual, regular, or customary” (merriam-webster.com, extraordinary [https://www.merriam-webster.com/dictionary/extraordinary] ); (Black's Law Dictionary [12th ed 2024], extraordinary).

4.   Specifically, the Court determined that “defendant failed to preserve his contention that the [lower] court erred in considering the totality of the circumstances and was instead required to engage in a two-part inquiry, the first part of which is satisfied only if ‘highly unusual and heinous facts are proven and there is a strong proof that the young person is not amenable or would not benefit in any way from the heightened services in the family court’ ” (Guerrero, 2026 N.Y. Slip Op 00826, *3).

5.   Our dissenting colleagues' reliance on Court of Appeals decisions for the proposition that an appellate court is limited to reviewing for abuses of discretion is misplaced (see Guerrero, 2026 N.Y. Slip Op 00826, *3;  People v. Telfair, 41 NY3d 107, 114 [2023];  People v. Morris, 21 NY3d 588, 597 [2013] ).  Outside of death penalty cases, the Court of Appeals can only review questions of law, such as whether a lower court abused its discretion.  It cannot substitute its discretion for that of the lower court.  By contrast, our review power, which includes the power to substitute our discretion for that of the trial court, is broader than that of the Court of Appeals.

6.   In fact, curbing youth recidivism is precisely one of the reasons legislators enacted the RTA in the first place (see Debate at 86 [“As children, they should always have an opportunity to get back on the right track.  Many of us, without a second chance, probably wouldn't be here.  We cannot continue to treat children like adults in the criminal justice system.  It is short-sided [sic], and a proven ineffective approach.  And [it] does not keep our communities safer.”] ).

7.   The dissent accords much significance to the fact that defendant was arrested for the instant weapons possession charge despite his successful completion of the Exalt Youth Program.  But nothing in the record suggests – much less constitutes “strong proof” – that this means that defendant was no longer “amenable or would not benefit in any way from” additional heightened services offered by Family Court (see Debate at 39;  cf.  People v. A.T., 63 Misc.3d 891, 895 [Fam Ct, Erie County 2019] [observing that the adolescent offender “does not appear amenable to services but rather appears to thwart any efforts at rehabilitation”] ).

8.   Contrary to our dissenting colleagues' suggestion, we do not “minimiz[e] the assault on the young girl” by noting, as a matter of pure fact, that the third-degree assault charge stemming from this incident is a Class A misdemeanor (see Penal Law § 120.00).  We similarly disavow any implicit insinuation that defendant's assault case being heard in Family Court would somehow amount to more lenient treatment, particularly given the “strong sanctions and tough punishments” defendant would face in that court (see Debate at 39;  J.A.D., 2021 N.Y. Slip Op 50189[U], *5 [“Family Court Judges can also impose strong and serious sanctions where they deem appropriate.”] ).

9.   Our dissenting colleagues claim that our holding “suggest[s] ․ that the Court of Appeals would have held otherwise in Guerrero if it also had the ability to substitute its own discretion.”  Not so.  As we have repeatedly stressed herein, our determination is based on the application of our distinct review power to the particular facts and circumstances of this appeal.  Any musing regarding what the Court of Appeals would have done in Guerrero if it had our review power is irrelevant, and we cannot surmise why the dissent believes such a suggestion is reflected in our writing.

10.   Because we conclude that Supreme Court should have denied the People's CPL 722.23(1) motion and instead transferred this action to Family Court, we do not reach defendant's remaining contention that the court erred in denying his suppression motion (see Lloyd F., 245 AD3d at 81).

11.   According to the briefs, defendant is currently incarcerated on an unrelated matter.  On August 13, 2025, under Bronx County Indictment 71167/24, defendant was convicted of criminal possession of a firearm and was sentenced to 2 to 4 years incarceration.

CHAN, J.

All concur except Webber, J.P. and Michael, J. who dissent in a separate Opinion by Webber, J.P.